Court Upholds Air Quality Standards

May 15, 2002

States, industry face tougher standards

," The U.S. Court of Appeals for the District of Columbia Circuit recently upheld ambient air quality standards for ground-level ozone (smog) and fine particulate matter promulgated by the U.S. Environmental Protection Agency (EPA) in 1997. Fine particulate matter ," smaller than 2.5 microns in diameter ," includes airborne soot from diesel trucks, power plants and other sources, while smog is caused by emissions from sources such as chemical plants, vehicles, power plants and refineries. Numerous industry groups previously opposed the tougher new standards, which require additional controls in many areas. EPA's decision to promulgate the new standards in 1997 was based on data from a variety of sources demonstrating that significant adverse health effects still persist even where pre-existing standards were attained. The standards were challenged by petitioners (the American Trucking Association, the U.S. Chamber of Commerce and other state and business groups), who

claimed the agency had not adequately justified the standards. In 1999, the court issued an opinion claiming that Congress had not provided sufficient direction in the statute to guide EPA in establishing ambient air standards. In February 2001, the U.S. Supreme Court reversed the decision and remanded the case to the U.S. Court of Appeals for further consideration. Ambient air quality standards establish maximum levels of pollutants allowed in air. Pursuant to the Clean Air Act, states must select and implement whatever pollution controls are necessary in areas not yet meeting the standards. Ozone and PM are ubiquitous pollutants, particularly in urban areas. Elevated ozone levels could aggravate heart disease and respiratory conditions such as asthma, bronchitis and emphysema. Elevated levels of fine particulate matter are associated with aggravation of respiratory conditions, as well as with increased susceptibility to respiratory infections and increased risk of premature death. This decision eliminates all remaining challenges to the standards. For more information, see

Exposure guidelines approved

," The National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances proposed standards for ammonia and fluorine. The public will have an opportunity to comment on these standards; a notice is to be published soon in the Federal Register. Acute Exposure Guideline Levels (AEGLs) are not designed to be enforceable regulatory limits but instead to help emergency responders deal with chemical accidents. The committee approved the following 10-minute AEGLs for ammonia: AEGL-1 (nondisabling), 25 parts per million (ppm); AEGL-2 (disabling), 270 ppm; and AEGL-3 (lethal), 2,700 ppm. For fluorine, the committee approved: AEGL-1 (nondisabling), 1.7 ppm; AEGL-2 (disabling), 20 ppm; and AEGL-3 (lethal), 36 ppm.

Council to sue Sunoco

," The Clean Air Council, a nonprofit environmental organization based in Pennsylvania, notified Sunoco Inc. of its intent to sue for alleged violations of federal and state air pollution control laws. The council alleges Sunoco released as much as 12 tons of sulfur dioxide and unburned hydrocarbons from an open burning flare at its Claymont, Del., plant between January 28 and February 8. From March 29 through April 3, the council alleges Sunoco released as much as 20 tons. According to James May, executive director of the Mid-Atlantic Environmental Law Center at Widener University School of Law, Sunoco decided to flare hydrogen sulfide recently when two general chemical boilers were shut down for repairs. The flaring of the refinery byproduct resulted in the sulfur dioxide releases. The council said it initiated its citizen suit because neither the state nor federal environmental agencies sought any enforcement actions against Sunoco for the permit violations. The council must wait 60 days before it files the suit. For more information about the Clean Air Council and its work, see its Web site at

EPA proposes exemption for petroleum wastes

," EPA proposed to exempt wastes generated at petroleum processing facilities from the Resource Conservation and Recovery Act (RCRA) if the wastes are turned into synthetic fuel through gasification. The proposal applies to hazardous oil-bearing secondary materials such as sludges, byproducts or spent materials associated with the petroleum-refining processes. Petroleum refineries generate approximately 130 million tons of RCRA hazardous wastes annually. EPA predicts the proposed exclusion will result in reduced petroleum waste treatment and disposal on the part of refineries. The proposed rule treats the targeted petroleum wastes as part of the ongoing refinery processes instead of RCRA hazardous wastes. The proposal is available for public comment at

Grayson is a partner with Jenner & Block, Chicago, working in the firm's Environmental Law practice group, Contact her via e-mail at [email protected].

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